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Intellectual property rights defined

Here on one page are descriptions of intellectual property rights under law in Australia. It's part of our series defining key concepts relevant to IP and innovation (see further reading list).

Questions answerd include - What subject matter attracts the rights? How do you get the rights? How long do rights last?

  • percy_trompf_bondi_posterPatent Act 1990 (Cth) - Two types of patents are available. A standard patent provides protection for 20 years of "any manner of new manufacture" granting to its owner the exclusive right to manufacture, licence or use the product or process. A four year extension is available for some pharmaceutical patents. The application process takes 2-4 years and the examination process is compulsory. An innovation patent provides protection for a maximum of eight years for an incremental invention that would not be sufficiently inventive to qualify for standard patent protection. The application process takes 6-12 months. Like design registrations, examination is only compulsory for formal requirements and a registration can only be enforced against an alleged infringer if the registration is examined for substantive compliance with legislation.
  • Trade Marks Act 1995 (Cth) - Protection is provided under the Act for a sign (eg word, logo, shape, design, sound, scent or combination of them) that is capable of distinguishing the goods or services of one person from those of another. The duration of the monopoly can be indefinite if renewed, but some conditions apply. The first period of registration is 10 years, renewals are for 10 years. Australia is a party to the Madrid Protocol which facilitates international registration of trademarks.
  • Subject to the availability of evidence, protection of unregistered trademarks, business names, corporate identity[1], brands, titles and goodwill can be obtained in court proceedings applying for remedies under the Trade Practices Act 1974 (Cth), state Fair Trading Acts, passing off law and some advertising-specific laws.
  • As regards domain names and cybersquatting, protection is available internationally under the Uniform Dispute Resolution Policy and the auDRP (which only deals with domain name cases concerning country code top level domains (ccTLDs) in Australia).
  • percy_trompf_colourful_qld_posterCopyright Act 1968 (Cth) - Protection is provided for subject matter divided into "works" (literary, dramatic, musical or artistic), "subject matter other than works" (sound recordings, cinematograph films, sound and television broadcasts and published editions of works) and for some other subject matter (eg performances). Literary works includes computer programs. The Act's "fair dealing" concept is not as broadly defined or interpreted as is the case with the U.S. law concept of "fair use". Unlike the position in the U.S., the Act incorporates extensive moral rights provisions.
  • Designs Act 2003 (Cth) - Protection of the new and distinctive shape, configuration, pattern or ornamentation of a product, being features judged by the eye, but not including a method or principle of construction. Registration lasts for five years from the lodgement date, then renewable for 10 years. Application process takes 6-12 months.
  • Plant Breeders Rights Act 1994 (Cth) - Protection of new plant varieties may be registered, with the result that the registered proprietor gains the exclusive rights for 20 years (from the date of application) to sell and produce for sale the registered variety, and its reproductive material, and to use the name registered for the plant.
  • Circuit Layouts Act 1989 (Cth) - Protects eligible layouts or integrated circuits for a period of 10 years from the date of making or first commercial exploitation. No registration regime exists or is required.
  • Confidential Information Law - Protection of information given in confidence, trade secrets and secret know-how. Monopoly rights can be held indefinitely but if the obligation is imposed on third parties the prudent practice is to limit the duration of required protection. Protection is not subject to the existence of any contract, document or other form of writing.

[1] See for example Hogan v Koala Dundee Pty Ltd (1988) 83 ALR 187 in which interests associated with Paul Hogan were successful in action against the defendant's unauthorised use of images deriving from the plaintiff's hugely successful film, Crocodile Dundee. See also Hutchence v South Seas Bubble (1986) 6 IPR 473 and more recently Hansen Beverage Company v Bickfords (Australia) Pty Ltd [2008] FCAFC 181.

Credits: This week a Percy Trompf (1902-1964) poster of the Astra Hotel (established 1886) at Bondi Beach, Sydney was sold for a record price according to today's Australian Financial Review. Good excuse to feature it here, along with another of his works.

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